Four states have notified a federal appeals court of their formal support for New Jersey in its attempt to overturn a 21-year-old federal ban on sports betting in 46 states.

The attorney generals in the four states – Virginia, Georgia, West Virginia, and Kansas – filed joint amici curiae (“friends of the court”) briefs to the Third Circuit Court of Appeals Monday that stressed that the states “take no position on the wisdom of the State and federal sports wagering laws at issue in this case.”

Instead, the state attorneys object to what they said is a fundamental principle of equal sovereignty that is being ignored by allowing Nevada to continue to offer extensive sports betting and Delaware, Montana, and Oregon to maintain their limited right to offer sports betting – while denying all other states any such gambling beyond horse racing, greyhound racing, and jai alai. They wrote that Congress also cannot “commandeer” states into enforcing federal policy.

Alllowing the Professional and Amateur Sports Protection Act of 1992 to remain on the books, state officials wrote, would pave the way for numerous other actions that could be mandated by the federal government but enforced by sometimes-unwilling states. That would lead to “misplaced blame” from citizens, they wrote, if Congress forced the states to regulate the level of consumption of coffee, or buttered popcorn at movie theaters, or extra-large sodas at sports stadiums.

“With the ability to shift political blame to the states, Congress could act with far less fear of repercussions at the voting booth,” the attorneys wrote. “The injury to State sovereignty would be unprecedented.”

U.S. District Court Judge Michael Shipp in February ruled in favor of the NCAA and the four major U.S. sports leagues in issuing a permanent injunction striking down a New Jersey law passed last year that would have allowed Vegas-style sports betting at the state’s racetracks and Atlantic City casinos. The federal Department of Justice intervened in the case on the side of the leagues while supporting the 1992 law passed by Congress.

Shipp found that the federal law did not run afoul of prohibitions against “commandeering” because it did not force states into any affirmative action – it merely prohibited most states from taking an action by legalizing sports betting. The attorneys for the four states now backing New Jersey cite legal precedents that they say show Shipp erred on that point.

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(original blog post from last night)

Four states – Virginia, West Virginia, Kansas, and Georgia – have filed amici curiae briefs in the New Jersey sports betting case that are not publicly visible. A review:

“Amici curiae are States that submit this brief to highlight the legal errors in the District Court’s reasoning and to explain the potential impact of the opinion on the balance between State and federal power.”

The amici States are the States of West Virginia, Georgia, Kansas, and the Commonwealth of Virginia.

The concern of the amici States in this brief is not what Congress regulates but how it does so.

“Even where it has Article I authority to act, Congress may not force the states to act as the vehicle for implementing federal policy and thereby shift to the States the political responsibility for its actions. Nor may it treat States dissimilarly for merely any reason.

These constitutional limitations on how Congress acts are as important as the substantive limits on federal authority and are fundamental to the preservation of State sovereignty.

Importantly, this brief takes no position on the wisdom of the State and federal sports wagering laws at issue in this case. Some States may support the expansion of gambling, while others oppose it.

Regardless, the amici States agree that the District Court’s reasoning raises serious federalism concerns and therefore jointly submit this brief to address that limited but critical issue.”

Let’s get more colorful now:

“The District Court would permit Congress to pass laws thatenact no federal regime and simply restrict a State’s ability to issue licenses, permits, or authorizations.

But when a State denies an individual his driver’s license, building permit, medical license, or fishing license, Congress is unlikely to be blamed because it has not made its interest apparent through some form of direct national regulation.

For the average American, who is not familiar with every nook and cranny of the United States Code, the more obvious targets in that circumstance will be the State officials or boards that issue the denial and quite literally stand between the citizen and the desired license.

Consider the following example. A 65-year-old citizen of West Virginia w ants to lawfully fish.

He goes to his county clerk’s office and submits his information and fee to obtain a fishing license.

Unbeknownst to him, the federal government, in an effort to prevent overfishing, has prohibited State governments from issuing fishing licenses to individuals over the age of 50.

However, Congress has not adopted any direct national regulation of fishing. Our would-be fisherman is denied his license.

Because there is no federal regulatory regime that might have alerted him to Congress’s involvement, it is unlikely that he will think to blame the federal government. More likely, he will fault the clerk who delivers the bad news or the West Virginia Division of Natural Resources, which is responsible for issuing fishing licenses.”

“Shoot the messenger” – a classic metaphorical issue for journalists – and several passages from Shakespeare and the ancient Greeks then follow.

Then issues of internet privacy laws demanded by Congress to be enforced by states, and even monitoring buttered popcorn sales at movies.

If that all seems arcane, make no mistake about the bottom line: this case has gotten much bigger than sports betting or fishing licenses or buttered popcorn.

This is a battle royale over what are the limits of Congress’s power over the states. Sports betting and the other examples may not be the most poetic of causes – but this right here is where states are now choosing to make their stand.